Following the U.S. Supreme Court’s June 2015 decision legalizing same-sex marriage in all 50 states, many LGBT parents and intended parents felt a weight lift from their shoulders: Now, surely, their families would have access to the same legal rights and assumptions of parentage that have historically been afforded to heterosexual marriages. Now, surely, they would be free from the extra legal proceedings and added expenses that LGBT parents have been forced to undergo in order be sure their families were secure.

Unfortunately, more than two years out from the court’s historic Obergefell v. Hodges ruling, the legal reality for same-sex parents—even those who are legally married—is not so cut and dried. As Cathy Sakimura, deputy director for the National Center for Lesbian Rights (NCLR), told The New York Times earlier this year, “You can be completely respected and protected as a family in one state and be a complete legal stranger to your children in another.”

The change in federal law left states to determine how to adapt their laws, rules, processes and official forms related to marriage and parentage to comply with the Supreme Court decision. Prior to June 2015, U.S. laws governing parentage, adoption and assisted reproduction technologies such as surrogacy, egg and sperm donation were a patchwork, differing from state to state. That patchwork still exists today, as state legislatures, state agencies and the courts try to hammer out the details of changes in the law, case by case. In the meantime, family law and ART attorneys counsel LGBT clients to continue taking extra measures to ensure their parental authority is recognized, regardless of where they travel.

Most family law and assisted reproductive technology (ART) attorneys recommend that same-sex couples who have a child through assisted reproduction undertake a “step-parent” or “second-parent adoption,” in which the non-biological parent (in a gay male couple) or the non-delivering parent (in a lesbian couple) adopts the child. In other words, even when a same-sex couple takes all the steps, as co-parents, to bring a child into the world via ART, one parent must still adopt his or her own child to ensure the fullest protection under the law. In some states, such as New York, the adoption process can be arduous and lengthy, including home inspections and background checks, as well as expensive.

But experts say a judicial order, such as an adoption, is the “gold standard” when it comes to ensuring parental rights are recognized in all jurisdictions. The U.S. Supreme Court has ruled that states must honor adoptions enacted in other states, and, internationally, judicial orders are more likely to be honored in countries where same-sex marriage is not recognized.

Meanwhile, officials in states where there has been political and popular opposition to same-sex marriage attempt to set up roadblocks to full parental rights for same-sex couples—making the legal landscape even more precarious and confusing for LGBT parents.

In March 2016, we wrote about an Alabama court attempting to overrule the state of Georgia’s authority in allowing a 2007 adoption. The lesbian couple lived in Alabama for 17 years, during which one partner gave birth to three children by donor insemination. Alabama did not allow same-sex marriage at that time. On the advice of an attorney, the family established residency in Georgia, where laws were believed to be less restrictive, and the non-biological mom adopted the three kids. Later, after the couple separated, the biological mom petitioned Alabama to nullify the Georgia adoption. The Alabama Supreme Court granted her petition on the basis that the Georgia court did not have jurisdiction and had acted incorrectly in granting the adoption. In March 2016, the U.S. Supreme Court overturned the Alabama ruling, confirming the Georgia court did have jurisdiction, and Alabama must honor the other state’s action. As we wrote:

Quoting from a 1940 Supreme Court decision, SCOTUS on Monday stated: “A state may not disregard the judgment of a sister state because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits…. On the contrary, ‘the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.’”

We wrote in February 2017 about two Tennessee bills carried by conservative state legislators. The first, SB0300/HB033, would have required that gender-specific words such as “husband,” “wife,” “mother, and “father” be interpreted literally, by their traditional, “natural and ordinary” meaning. As we wrote:

In other words, no more gender-neutral reading of the law. If a statute says “husband,” the word would be defined as a married man, “wife” as a married woman.

That bill, although assigned to committee, never picked up steam. But a replacement bill, SB 1085/HB 1111, removed the gender-specific references, simply requiring that undefined words in state statutes be given their “natural and ordinary” meaning. With the support of anti-LGBT activists, such as the Family Action Council of Tennessee, the new iteration of the bill sailed through, was signed by the governor, and took effect May 5, 2017.

Four married lesbian couples, all of whom had conceived and were expecting children via assisted reproductive technology, sued the state, claiming the new law is an attempt to subvert federal law by denying same-sex spouses the legal rights and protections provided to “husbands,” “wives,” “mothers” and “fathers” by restricting the meaning of those terms. The couples’ suit was dismissed in July, as reported by The Tennessean, with the judge ruling that state officials must “accord same-sex parents the same right as opposite-sex parents to be named on a child's birth certificate.”

“As the law of the land, the constitutional rights of same-sex married couples to be treated equally to opposite-sex couples with regard to the application of a state's birth certificate laws ‘can neither be nullified openly and directly by state legislators or state executive or judicial officers,’” [the judge] wrote, quoting a 1958 case.

The second Tennessee bill we looked at back in February was HB1406/SB1153, which would have repealed part of a law that says when a married couple has a baby using in vitro fertilization (IVF), both partners are assumed to be the baby’s parents. On the face of it, that would mean both same-sex parents and heterosexual parents would lose the presumption of parentage that comes with marriage. However, a separate “Presumption of Parentage” section of the law establishes that if a married woman has a baby, her husband is presumed to be the baby’s father. Happily, this discriminatory bill failed to make it out of committee in the past legislative session.

Other states, partly in response to anti-LGBT legislative and judicial backlash in conservative states, are taking steps to protect their citizens who travel to other parts of the country. In September 2016, California legislators passed AB 2349, the Surrogacy Parentage Protection Act, which confirms the jurisdiction of California Superior Courts to determine the parentage of children conceived or born in California under California assisted reproduction agreements. As we wrote then:

The impetus behind AB 2349, which to a large extent simply confirms California’s jurisdiction over surrogacy agreements that were already under its jurisdiction, was recent actions by some state courts questioning other states’ jurisdiction to establish parentage, throwing children’s parentage into question and burdening parents with onerous legal proceedings.

The above cases are only a sampling of the turmoil and legal upheaval taking place across the United States as elected officials, judges and communities work to codify marriage equality into state and local statute. New attempts to subvert the intent of the Supreme Court emerge with each election cycle. New discriminatory laws are enacted, only to be struck down in the courts. Meanwhile, for LGBT parents and intended parents, certainty of their legal status remains elusive.

That LGBT parents must adopt their own children in order to secure parental rights, when heterosexual parents have no such burden, is unfair. But, barring a federal standard for parental establishment, second-parent adoption continues to be the best way for LGBT parents to protect their families anywhere in the U.S. and abroad.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.